The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, October 13, 2004

Beginning litigation with all the knobs cranked up to eleven

One lawsuit war story that I can't tell in any more detail than this involved my representing a defendant in a defamation case in which the plaintiff's complaint claimed — in exquisite detail — that my client had said some very unfortunate things. Confronted bluntly and forcefully in my first private conversation with him, my client absolutely, emphatically, and repeatedly denied that he'd said any of those things, and that's what he continued to insist when he gave his oral deposition on videotape. He seemed to me to be a pretty credible fellow, and the plaintiff seemed to me to be (and in fact was) something of a kook.

But there was much wailing and gnashing of teeth among the defense team when, immediately after my client's deposition, the plaintiff's counsel produced an audiotape with exactly the quotes contained in the complaint that my client had just, under oath, denied having made. Through extraordinary, expensive, and desperate efforts — basically involving the civil-law equivalent to a temporary insanity plea — we managed to scratch and claw our way back to a posture from which the case was settled on pretty reasonable terms, all things considered. But it was hard, embarrassing, ugly work, and taught me some lessons I shan't forget.

Accordingly, if, hypothetically, I were defense counsel in this case, I'd muzzle my clients, refuse any but the most bland and generic comments to the press, and generally keep a very low profile until I got the plaintiff's response to my first request for production, which would ask for any and all audio- and/or videorecordings of my clients, and my first interrogatory, which would ask for the identities of any corroborating witnesses other than the plaintiff herself.

Indeed, if (as seems to have been the situation here) I'd seen the plaintiff's draft complaint before it was filed, then even if the plaintiff had made what my clients believed to be an outrageous and unwarranted presuit settlement demand, I still think that if my clients absolutely insisted that I file an preemptive lawsuit claiming extortion before I had seen the plaintiff's response to my first request for production and first interrogatory, I'd suggest that my clients find other counsel.

Of course, some of these exact same defendants have ignored my well-meaning, unsolicited legal advice in the past, and I got to say toldja so as a result.

The Volokh Conspiracy's Jim Lindgren, who knows whereof he speaks about criminal extortion matters, has a fine post up about that aspect of the case. Of course, it may turn out that the preemptive extortion claim is factually justified, and that the young woman's sexual harassment claim isn't. In any event, however, this looks like litigation in which both sides have started with all the volume knobs cranked up to eleven — and it's awfully hard to back off from those positions as the case develops.

Well, I know Ron Green is one of the best employment defense lawyers in NYC, having seen him in action at trial. I'm liking the claim that a $60 million settlement attempt on a Title VII claim where there are no actual damamges is extortion.

I don't think the defense (that is, Fox's defense) is that the statements were not made; I think the defense is that, even if the statements were made, the plaintiff cannot present a prima facie case under current sexual harrassment law, because the woman suffered no adverse employment consequences.

I don't know sexual harrassment law well enough to hazard any opinion about this position; it would seem, at the least, that if the statements were made they could be construed as creating a "hostile work environment," thereby creating liability.

I found the Cosby case to be instructive, which Volokh discusses. The putative daughter had a prima facie case for support against Cosby, but her threats and demands ($40 million under threat of exposure) constituted criminal extortion.

Makris allegedly demanded $60 million under threat of exposure. If true, this is not good. Makris may be a fine producer, and a wonderful woman, but this is not worth $60 million. And coupling that demand with threats of exposure is telling.

To follow-up on MD's post, under the Supreme Court’s 1998 decisions in Burlington and Faragher, in a "hostile environment" claim, the defendant has an affirmative defense that it exercised reasonable care to prevent and correct a hostile environment. Like all big companies, FOX has an employee manual that provides a method where an employee who feels she is being harassed can go to some sort of ombudsman to complain, and then FOX would have a duty to fix the problem, such has by disciplining O'Reilly. Since Makris kept these charges to herself (and maybe her tape recorder), the defense applies.

Makris fires her current counsel, hires new counsel, who impleads original counsel as third-party defendant and liable for any damages incurred by Makris as a result of the extortion attempt ("it was his idea"); they also might add a generic malpractice claim.

Fox buys out Makris for a satisfactory sum, then the real action begins between Fox and Makris' original counsel (actually, his malpractice carrier).

She returned to work for O'Reilly at Fox in July of 2004, according to her lawsuit, after winning assurances that O'Reilly would no longer engage in inappropriate conduct."

Ok.

A. Mackris worked for O'Reilly for four years as a producer. During this time period she supoosedly endured the unwanted harrassment.

B. Then in January of 2004 left for a job at CNN.

C. Within a couple months Mackri's boss is canned for sexual harassment. Whether this involves Mackris or not I don't know. Frankly this might not, and probably is not, relevant at all.

D. Mackris then goes back to work for O'Reilly by July of 2004. Supposedly with assurances that O'Reilly wouldn't harrass her anymore.

Speculations:

1. Why didn't she sue a lot earlier? Having left FNC to work for CNN and then returning, all within the same year, cannot be very helpful to her legal case.

2. If she's got a case, then she'd do a lot better to just release whatever evidence she has. The real case is in the court of public opinion. Aside from any criminal proceedings Mackris could leverage a successful assault on O'Reilly into a new career. But only if she wins in the court of public opinion.

Unless she has bupkis. In which case she has to do a legal fan dance and hope to come out in one piece. Considering how pissed O'Reilly is, that's doubtful. There had better be a lot of solid evidence or else she's toast.

My feeling, just a gut feeling BTW and so utterly irrelevant, is that there is evidence, but it's not at all solid. When you work with people for a number of years, as O'Reilly and Mackris did, you do tend to let the hair down quite a bit. You talk and joke about various issues and generally goof around. But that's all it is, goofing around. But someone with a tape recorder, and a willingness to use it selectively, could easily produce whatever evidence is desired.

It could even be a case where Mackris invited this behavior and then taped it.

Another point would be the timing of the evidence. If any of it is from prior to January 2004 then it would, IMHO, have much more legitimacy than afterwards. If Mackris accumulated all, or most, of her evidence from July 2004-Sept 2004, her most recent employment at FNC, then it would appear to be a calculated gambit.

It'll be interesting to see.

3. FNC is claiming that Mackris's lawyer has ties to the DNC and that this is all politically motivated. Hmmm. Well there is that interview with Kerry. O'Reilly's been after Kerry for months now to appear on his show. But if O'Reilly is under a legal, and moral, cloud then any pressure to appear then simply vanishes. While this sounds pretty tin-foil hat, even to me, it is pretty significant that Kerry hasn't been interviewed by a neutral, let alone hostile interviewer.

Kerry does have any number of outstanding issues that could all be very damaging and I can't imagine that O'Reilly would softball anything to Kerry. Additionally the interview could raise these problem issues back into the national conciousness at just about the wrong time for Kerry. But if Kerry avoids getting interviewed by O'Reilly then there's that whole "what does he have to hide" meme.

Unless O'Reilly is effectively crippled on his credibility.

4. What is also interesting is that O'Reilly went public filed his lawsuit first. Mackris tried to get a settlement from O'Reilly for $60 million. Frankly that's a ridiculous sum of money for VERBAL sexual harrassment. As was pointed out in a few news articles, Mackri's lawyer was able to get only a $4 million settlement on an actual case of forced sex. Not verbal but actual sexual intercourse.

So why the $60 million? I can't believe that Mackris's lawyer was completely ignorant of the legal statutes concerning extortion. That's pretty ridiculous isn't it? Particularly when that law firm has past experiences with which to judge what the relative merits and worth is of her case.

5. I'm curious to find out when Mackris, or her lawyer, first approached O'Reilly and FNC for a settlement. This might have an impact on my tin-foil hat theory that this is all tied up with the

If even a small part of this is true, and I have yet to hear any denial, then the sound that you hear off in the distance is that of the combined racket being made by O'Reilly's rapidly receding credibility, career, marriage and estate valuation.

You are a lawyer and tend to look at these things through the eyes of a lawyer. I am looking at the personal aspects of the situation. It defies belief that a supposedly intelligent, 21st century icon like O'Reilly would toss it all aside like so much useless and valueless flotsam for, what? A couple of self-induced orgasms by telephone? I think I and most of us outgrew that urge while still learning to shave.

And besides, I thought phone sex was where a female voice on the other end of the line did the inducing. The perported quotes in the filing at The Smoking Gun alledge that O'Reilly did the talking and the inducing. Does anyone really have that much ego?

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